Opinion of the Justices

65 A.2d 876, 95 N.H. 555, 1949 N.H. LEXIS 223

Opinion

To the House of Representatives:

The undersigned the Justices of the Supreme Court make answer as follows to the inquiries contained in your resolution with reference to House Bill No. 393, entitled “An Act Creating a State Apple Commission.”

Your first question reads as follows: “Is it constitutional to have an excise tax or assessment as specified in Section 4, to be used for the purpose set forth in Section 3, entitled: ‘Powers and Duties of the Commission?’ ”

The Act contains the following provision: “4. Excise Tax Levied. There is hereby levied on all commercial apples grown in the state and moving into the channels of commerce, beginning with the year One Thousand Nine Hundred and Forty-nine, an assessment of one cent per bushel.”

We are of the opinion that a tax of the kind specified cannot be laid in this state. It comes within the class of occupation taxes which were condemned in the Opinion of the Justices, 82 N. H. 561, 563. The raising and selling of apples involves “only the ordinary transactions of private life.” It contains “No element subject to supervision either under the police power or as things affected with a public use. The mere statement of the general proposition is sufficient to show that it unquestionably exceeds the legislative power.” Opinion of the Justices, supra. “The provision for laying excises, contained in the constitution of Massachusetts, was omitted from that of New Hampshire. State v. Company, 60 N. H. 219, 249. ‘There is no warrant for the imposition of any other tax than one assessed upon a proportional and equal valuation of all the different kinds of property on which it is to be levied.’ Ib., 246. Amoskeag Mfg. Co. v. Manchester, 70 N. H. 336. No authority has been given to prescribe ‘an arbitrary imposition of specific taxes upon the objects named.’ Opinion of the Justices, 76 N. H. 588, 596.” Opinion of the Justices, 82 N. H. 561, 563.

Since in our opinion the proposed tax is unconstitutional, there appears to be no occasion to answer the second and third inquiries contained in your resolution.

Oliver W. Branch. Francis W. Johnston. Frank R. Kenison. Laurence I. Duncan. Amos N. Blandin, Jr.

May 3, 1949.